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Kissory Lall Basak and ors. Vs. Corporation of Calcutta - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1938Cal870
AppellantKissory Lall Basak and ors.
RespondentCorporation of Calcutta
Cases ReferredAbinash Chandra v. Corporation of Calcutta
Excerpt:
- .....of the act assessed the premises at a certain figure on the basis that the land had ceased to be bustee land. on this letter appears the following note 'please note that the character of the premises is changed from bustee to non-bustee'. on 8th december 1936 the applicants submitted the building plan of which sanction is sought. the letter reads as follows:i understand that there is a scheme for a bustee improvement road over the said land and that the necessary sanction of my said plan cannot be granted unless the said schema is formally abandoned.3. he refers to the letter of the assessment department and calls upon the corporation in this case the bustee surveyor, to whom the letter was addressed to 'get the scheme formally abandoned'. on 4th january 1937 the city architect.....
Judgment:
ORDER

Ameer Ali, J.

1. This is an application under Section 45, Specific Relief Act, that is to say, by way of mandamus. It is necessary clearly to bear in mind the precise acts which the Court is asked to require the Corporation to carry out. Clause (a) of the, notice of motion is divided into three sub-clauses, which are as follows:

(1) Granting necessary sanction to the applicants building plan on the land of the said premises No. 19/1, Ultadinghi Road. (2) Formally excluding the said land from the limits of bustee. (3) Showing the said land in the standard plan approved for the bustee as not being part of such bustee.

2. Clause (b) of the summons reads 'that the Corporation of Calcutta do forthwith deal with the said matters mentioned in Clause (a) hereof according to law.' The facts are as follows : The applicants as executors to the estate of Babu Arun Bhusan Bysack own the premises 19/1, Ultadinghi Road. These premises, before the facts which I am about to mention, formed part of a bustee as defined and determined by the Corporation. On 18th August the executors wrote (one of the applicants wrote) to the Assessor, Corporation of Calcutta, stating that the huts 19/1, had been removed, that the land was lying vacant and requesting him 'to change the mode of assessment from bustee category into building and house basis and to grant vacancy allowance'. On 14th September 1936 the Assessment Department of the Corporation purporting to act under Section 138 of the Act assessed the premises at a certain figure on the basis that the land had ceased to be bustee land. On this letter appears the following note 'Please note that the character of the premises is changed from bustee to non-bustee'. On 8th December 1936 the applicants submitted the building plan of which sanction is sought. The letter reads as follows:

I understand that there is a scheme for a bustee improvement road over the said land and that the necessary sanction of my said plan cannot be granted unless the said schema is formally abandoned.

3. He refers to the letter of the Assessment Department and calls upon the Corporation in this case the bustee surveyor, to whom the letter was addressed to 'get the scheme formally abandoned'. On 4th January 1937 the City Architect Department refused sanction on ground that the proposal was affected by bustee road. There is reference to Section 341. Section 341 in terms applies only to huts. The proposed erection was not a hut. The matter went up, I understand, by way of appeal to the Building Standing Committee No. 1, who on 11th January 1937 dealt with it or purported to deal with the matter:

Departmental recommendation-Refusal

The party was heard.

Resolved : -'That the case be postponed for the presence of the bustee surveyor'.

4. It came up on the same day, f6r what reason I do not understand, before the Road and Bustee Standing Committee, and the Committee were asked to consider whether Section 362 should be applied with regard to the bustee road passing through premises 19/1, Ultadinghi Road. Section 362 so far as I recollect contains provisions for leaving certain space on either side of a road or a projected road : 'Resolved that the consideration of the matter be postponed for the inspection and report of certain members of the Committee'. This Committee, the Road and Bustee Standing Committee, again met on 15th March 1937 and the effect of the resolution then passed was that the bustee road should not be encroached upon, but that no margin need be left on either side. The Building Standing Committee met again on 3rd August 1937. This was the Committee, as I understand the matter, dealing with the appeal, and they adjourned the hearing 'for the opinion of the law officer as to whether the bustee road could be insisted upon, the land being declared as non-bustee land', and there the matter, so far as the Corporation is concerned, appears to have ended. The executors being naturally inconvenienced by the delay on 25th November 1937 wrote a letter to the Chief Executive Officer calling upon the Corporation to do the following things and this should be compared with the things asked for in the notice of motion:

(i) to grant them the necessary sanction to my client's said plan; (ii) to formally exclude the said land from the category of bustee inter alia under Section 359 (4) (1), Calcutta Municipal Act, and (iii) to cancel or vary the standard plan for such bustee within a fortnight from date.

5. This letter was never answered. In these circumstances the executors took out a notice of this motion on 27th January 1938. It was stated by counsel that one of the applicants had an interview with the attorney for the Corporation and that matters had been explained to him. That is not on affidavit and it did not appear to me right to allow matters during the course of the argument to be placed on affidavit. In the circumstances I have to deal with the matter purely on the correspondence.

6. I should have mentioned in order to explain what I have already set out and further to explain the argument to which: I shall have to refer, that in 1928 under the appropriate provisions of the Act a bustee scheme or plan called a standard plan had been prepared by the Corporation. That is referred to in the affidavit in opposition and a copy hag been handed up to me. Without reference to it, it is not easy to understand the real matters involved. 19/1 is a narrow strip running: north and south with a road frontage on the south. According to the bustee plan a road was projected running north and south and its southern end runs almost entirely along but within the eastern boundary of 19/1.

7. To my mind the questions which have' been argued before me are to be divided' mainly into two (1) whether what has taken place shows that the Corporation have refused to deal with a matter within. their jurisdiction, whether the delay is such as to indicate that they had declined to do what they were bound to do under the Act. That is one question. That assumes that the matter is subjudice and' that the Corporation has made no decision. It involves no consideration of what the Corporation ought to do. The question is simply whether the circumstances are such that they should be called upon to act, and upon that point, I called upon Mr. Sanyal. It is in point of fact of less importance' than the question or questions of construction which have been argued by Mr. Roy upon which I did not call upon his opponent.

8. Shortly put, Mr. Roy contends first of all that this Corporation by the letter from the Assessment Department on 14th September 1936 had already decided that 19/1, is not a bustee. It has by reason of that letter ceased to be a bustee. Alternatively he contends that under Section 359 the Corporation under Sub-section (4) is bound to exclude 19/1 from the bustee and show 19/1 as a non-bustee (to use that expression) in the standard plan. In point of fact Mr. Roy's client did not proceed in accordance with the earlier provisions of this Section, but for purposes of this part of the case I will assume that he is entitled to all the rights and advantages which he may obtain under that Section.

9. I now come to the vital portion of his argument which is as follows : Mr. Boy construes this Section read with Section 354, as meaning this, that once a land is free from huts he is entitled to have it marked non-bustee, once marked non-bustee the land is automatically freed from any of the incidents of a bustee standard plan. 'No bustee, no standard plan.' That is Mr. Roy's slogan. In other words, the provision relating to standard plan are determined automatically the moment the land is declared non-bustee or the huts are demolished. He refers to Section 354 which does imply the existence or an existing street, streets not only projected or designed, but made. He relies on the authority in Abinash Chandra v. Corporation of Calcutta (1907) 12 CWN 72.

10. It is to my mind clear that although a particular portion of the bustee may be declared non-bustee, the bustee standard plan with regard to that land is not a nullity, that it is for the Corporation then to determine how much, if anything of the standard plan, should be cancelled or varied. With regard to streets any other view would of course lead to an absurd conclusion. That is not a reason for construing the Act otherwise if the Section is clear in the sense for which Mr. Roy has contended; but I think it is not. I think that Sub-section 6 does apply to this situation and Sub-section 7 has also been specifically inserted to meet the case of a street projected but not actually made, the alignment of which affects the land, which under the earlier sub-sections is declared to be non-bustee. With regard to Sub-section 6, Mr. Roy's contention is that bustee means bustee after deducting the particular portion of land declared non-bustee, e. g. in this case 19/1. I do not so read the sub-section. In my view, when the land is 'de-busteefied' under the earlier sub-sections of this Section the practical question arises as to how far, if at all, the alignment of the projected street should be varied. That was the practical question before the Committees, and for some reason they treated it with the utmost apprehension resulting in the delay I have described.

11. In connexion with Mr. Roy's argument as to the meaning of Sub-section 6 of Section 359, it is interesting to note that his own attorney in the last letter, the letter of November, called upon the Corporation to cancel or vary the standard plan for such bustee, which is not consistent with the proposition that it need not be varied or cancelled because its effect has been automatically determined. My view therefore is that the applicant is not entitled to press for the main relief under Clause (a) -(1) of the summons. Giving the applicant the benefit of Section 359 he would be entitled to reliefs such as are indicated in Sub-clauses (2) and (3) of Clause (a) of the summons. These however are purely subsidiary to the main relief asked for an order on the Corporation sanction the 'building plan. I still have to deal with the other point, i.e. not making any order upon the Corporation to do any specific act but ordering it to deal with a matter with which it had refused to deal.

12. Clause (b) of the summons may be taken to apply to this aspect of the matter, although I have no doubt it was really intended to merely supplement the main relief of granting sanction to the plan. Should I issue a mandamus upon the Corporation to deal with this matter, I think this is a doubtful question. There has been delay and I think the Corporation were definitely wrong in not replying to the letter of 25th November. It is no use suggesting that they were frightened of the applicant although he was pressing upon them a view of the Section which they felt might put them into difficulty. It would have been easy enough to frame an answer which would protect their interest. I think therefore the applicant was' on this basis justified in coming to Court. Whether in view of what has happened and the position as it appears I should issue a mandamus is another question. I think it is a question of costs.

13. Mr. Sanyal on behalf of the Corporation assures me that the matter will be dealt with according to their view of the Section and that it will be properly and promptly dealt with according to that view, whether it be right or wrong. The course which I propose to take is not to issue a mandamus now. In view however of the difficulty which Mr. Sanyal must find in giving the undertaking to deal with the matter promptly, I adjourn the matter for two months. I shall then also be able to deal with the question of costs. In my view I should not make the applicants pay the costs of this application; the only question is whether they should get the costs. They have asked for more than I think they are entitled to, and in the circumstances subject to consideration and to what happens in the meantime I should make each party pay their own costs.


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